A witness subprenaed by the prevailing party to the suit cannot,upon,his own motion. have his fees that remain unpaid taxed in the bill of costs against the losing party; and it.seerna that the prevailing party himself cannot have them taxed until he has paid the witness, either before or after the service has been rendered, and before judgment for costs.

2.

UNITED STATES COURTS-STATE PRACTICE AS TO CosTs.

The' federal statutes regulate the matter of fees and costs in the courts of the United States, and the statutes and practice of the state are not binding iu matters comprehended by the federal statute. Hence any state practice of indulgence of credit for the fees of litigation until final judgment for costs, .· doesmot obtain in the federal courts. where the act of congress prescribes. a specific regulation on the subject. The Tennessee practice of giving credit for fees until final judgment, and return of nulla bona against the losing party. is a voluntary indulgence by the persons entitled to the fees, and not, perhaps. a striclright under the statutes of the state·

.Application for Witness Fees. , These were ,suits f()r damages sustained by the plaintiffs by reason of the constructio:{l by de'fendant of its railroad tracks along the street in front ·,of- their property, wherlilby the ease of ingress and egress was impaired. several such S\1.its, brought by other owners having property by t;he railroad,· and all resulted, in abutting on the street so juqgmentsagainst the defendant. In several instances the sa,me witneS!'! waSis!llmoo<ilned for the plaintiff in more than one case, though there is po pretense that any witness was paid or tendered his fees, before or after attending the court, by anyone of these plaintiffs. The costs in the disposed of, including witn\'lss fees, 'were paid by the defendant; b\lt, it refused to pay the fees of certain witnesses in the other '(lases, who had been already paid for attendance, on the grounds tha;t iherewas r10 sufficient evidence of such attendance, that the fees claimed were not bonafide, and that the witnesses were entitled to their several fees in but one case, irrespective of the number of cases in which they were summoned. Whereupon this application is made by two of the ,wit(nesses, who appear by counsel, and ask "that the defendant be ordered The plaintiff in no one of the cases has taken any part in thiR 'application, which is wholly ex parle, by the witnesses. E. B.lr.fcHenry, for the application. Newman Erb,contra;
, H4MMO;ND, J. IIi the cases of Archer v. I'MUrance Cos., ante, 660, (decided' at the April term, 1887,) I ruled that, under section 848 of summoned in several suits, and who atjten,ded,. under'service upon of subpf;Blla in each suit, was entitled fees in all the cases, the parties being different; and that the fact that. there was a common defendant, the plaintiffs not being the same, did

664

FEDERAL REPORTER.

/

not alter the rule. That was the sole question in those cases, so far as the fees of witnesses were involved. Here the defendant denies its liability under the judgments rendered against it in these cases to anyone but the judgment plaintiff, and challenges the right of these two witnesses to make this application, as not being parties to the suit, nor seeking any relief or payment from the party at whose instance and for whose benefit the fees claimed were earned. In this and like applications the distinction between fees and costs has been entirely overlooked, the latter being an allowance, always given by statute, to the party for expenses paid or incurred in conducting his suit, while fees are compensation to an officer or witness or others for services rendered for the party in the progress of the cause. Strictly speaking, the prevailing party to a suit recovers, a8 costs against his adversary, only the fees ,,:hich he himself has paid, or is liable to pay, and hence the usual form:, of judgment was Jorthe recovery, Hand his costs in this behalf expended." The claim for fees in a case, therefore, is only good and against the party to the suit for whom the services were rendered, entitling the claimant to compensation, and not against the losing party simply because the other party to the suit has a judgment or decree against him. Otherwise every witness, officer, printer, etc., having fees unpaid in a case, would' be, equally with the winning party, judgment creditors against the'losing party for the amounts severally due thein. Costs were not recoverable at common law, and were first 'given by the statute of Gloucester, (6 Edw. I. c.l,)and are entirely regulated bystatuteas to both item and amount. The federal fee-bill act of 1853, which abolished all fonner practice and laws on the subject of fees and costs in the courts of the United States, prescribed the items composing a bill of costs to be taxed against the losing party. It appears as section 983 of . the Revised Statutes, and is as follows: "The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases, whereby law costs are recoverable in favor of the prevailing party, shall betaxed by a judge or clerk of tb6 court, and be iucluded in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be tiled witb the papers in tbe cause." In Wooster v. Handy, 23 Fed. Rep. 49, 62, on a question between the parties of retnxation of costs, the clerk had disallowed the fees of a certain witness who had not been paid by the party in whose favor the taxation was had, and who had been paid in certain other similar cases; and Mr. Justice BLATCHFORD sustained the disallowance because the party claiming to recover for the fees did not show that he had paid the amounts to the witnesses i construing this statute to mean that. the bill of costs could in this regard inclllde only "tne amount paid." The learned justice in his opinion says: ' "If a party does not pay a witness either before or after he has testified, the presumption is that the debt is forgiven, unless the failure to pay is explained in such wise that the fee can be considered as if ·paid' ; because botb parties intend it shall be paid. Nothing of that kind here appears. Witnesses are

O'NEIL

v." kANSAS CITY, S. &M. R. CO.

665

generaHy paid in advance, or at the time, or soon afterwards; and where, as they are paid in one or more cases, and not in others, tlJ(l evidence is I1trongthat they are never to be paid: especially where the lapse of time is so great ,as here between the rendering of the service and the taxation." : The witnesses making this application were not paid before judgment, nor have they been yet paid by the plaintiffs who summoned them, and the judgments were rendered some 18 months ago. The law never intended that parties to a litigation in court should be allowed to make profit out of each other in the taxation of witness fees, and doubtlesEl the provision in the statute just cited was to prevent any prob" such practice. As to this item of witness fees, certainly, ably means remuneration; and the argument is forcible that any other than the rule contended for by the defendant would open the door to careless, if not fraudUlent, practice, and tend to make litigation needlesslyexpensive; .as the cost of credit witnesses would naturally be more readily incurred than that of cash ones. But this point need not be declded upon this application; ·for the other question that the witnesses carinotj"in any event, have a standing in the court to make this motion, isconolu&iveof it. If they have been paid by the prevailing parties, they have no cause to ()omplain; if they have not, they must look to the: plaintiffs' for payment, and proceed against them in some proper mariner, either here or elsewhere, as they may be advised; though as to this no opinion is expressed, as it is sufficient here to hold that they cannot in this way, rior at all, proceed against the opposite party for their fees.' Apractice founded, no doubt, on the early North Carolina cases cited byc0unsel, has grown up in our state courts in Tennessee of treating the fees dueto.,the officials, the printer, witnesses, etc., as the debt of the party losing as to costsjas due directly from him to the officer, printer, or witness, and taxable in judgment for ,costs, without the least referto the fact whether they have been paid by the party at whose instance they were incurred or not. Carter v. Wood, 11 Ired. 22. This (lomes of doing the work of litigation on a credit. It is very convenient for the parties, plaintiff or defendant, to have it done that way, but it requires only a moment's reflection to see that the practice is subversive of the legal principles that govern costs, as between party and party, and inimical to the just rights of those who perform the service, whether officers or witnesses. If, by the silent force of obedience to law, either party can, upon the service of a subpcena, secure the attendRnce of a witness and his testimony, without payment in cash of the legal fee for it, upon the tacit understanding that the witnesses will look to the final judgment as to costs for the payment, it is not wonderful that both sides resort to this course, and come to think that they may be so relieved of the burdens and expenses of litigation a8 a matter of right. But in fact it is only a good-natured indulgence. Most men care nothing for witness fees, and cheerfully obey a subpcena without question concerning them. If they think of it, or attention be called to it, they will prove their attendance formally, and await the final judgment for costs. Per-

G66

FEDERAL REPORTER·

.haps that is the last ihey think of it; and they never return to the parties or the court to collect the theIn, and the amounts go into by statute, into the public cofthe pockets of the officers, fers. Other men do care for these fees, and collect them closely when the e;x:ecution comes in or the judgment is otherwise paid. Yet other. men, sometimes needy, somewhat like professional jurors, are always on the qui vive for service as witnesses in relation to the things they know, aIidtheselike to build up claims for attendance, and conduct the business to.make the most money. Thus litigating upon a credit fosters these evil tendencies, and encourages litigation of a purely speculative character, andllas all the ill effects ofother indulgences upon credit. But it only needs the test of some application .like this, or the inexorable demand 'Of some witness sufficiently informed as to, his right to have his fees' paid in advance, or in .cash wheu the service is over,to demonstrate that his own debtor. is the party who summoned him, and not the contingent loser of the suitl' that he is notcomlJelled to obey the 8ubprena-and this he does not always know, and the party does not take pains to communicate-unless the fees are paid in cash; and that he is not bound to serveas a witness:upon a credit, taking to himself all the risk of litigation, and await judgment for costs against.R :remote party, a stranger to the transaction with him, and possibly aninsolvent. But that these risks properly belong to. the party who needs his services; that it is the duty of that .party to pay'for them the legal fees, as for any other service he needs in his 'business affairs,. and in the end to himself, take the j for these expenditures\against his adversary, ifthat adversary lose the case,. and collect hiscosts,-:-there is no doubt. The sameprinciple applies ,to the officials, unless upon the pauper's oath they be compelled to work for nothing, and not more than a witness can theJT be forced to await judgment against the losing party.. They do this, in bur practice, partly from policy, mostly: from habit; blit, nevertheless, the doing of it is purely voluntary, and only an indulgence;1ike any other credit for a service rendered. . Nor does the giving of a cost-bond alter this essential ahd fundamental law of costs. That is given to the party to the suit, and for his protection. Technically the officers and witnesses are not parties to the bond; cannot, except by statutory regulation, sue or moVe upon it; and have no concern in it, only that, by equitable substituti9n, they are entitled to its benefits; and many statutes are made to prbtect them in this right of substitution by giving them a summary and easy method of,realizing the security. This is the theory of the statutes,: but in practice the indulgences already referred to have grown into the 'habit of making the reliance upon the secondary liability thus established, that which is the chief reliance, to the exoneration of that primary liability of the party in whose behalf the service is rendered; until,.in the state practice, the officers and witnesses do 110tresort to the principal:debtor" unless they have exhausted the security debtor, so to speak, and there isa 'I1ulla bona return for costs; when, by a statutory motion over against the party who originally employed them, and was bound to pay them at the time of

UNITED STATES V. BALL.

667

employment I they get a judgment against him which they might have llad cumulatively 1:>Y goirig before a justioe of the peace, and suing for their fee8, notc08t8,in the first instance, if the 'demand for their payment were neglected or refused. I have thus called attention to the law of oosts in this regard, so thatit maybe .understoodthat in out federal practice the acts of congress proceed upon the fundamental, essential, and common-law doctrines and distinctions as to fcesand costs I ahd tHeir language plainly indicates that any de.parturefrom these doctrines is contrary to the statute itself, whatever may 'bethought of the state statutes I which, in my judgment, however, are substantiallYi the same when ·we 'eliminate the mere indulgences of practice,.anddistinguish between the rights growing out of those indulgences and-the teclmical, strict"and 'legal rights that grow out of the laws of foos and costs, as found in<the statutes themselves, which regulate the subject; Application refused.

UNITED STATES 17. BALL

and another.

(Ot"rcu# 06urt,D. Oregon. August ,5, 1887.)

settler on the public lands. under the homestead act, pending his residence thereon, and ,prior to the issue of a final certificate, is like a person in possession under an uncompleted contract of 'purchase, and he is not authorized to 'cut or remove timber therefrom except for the purpose of preparing the land in the ordinary way for tillage; but If he does cut and remove timber therefrom for export and sale merely, and afterwards obtains a certificate from the register and rec.eiver of his compliance with the law, as such settler, the States cannot thelieafter maintain an action against him for damages for cutting such timber, nor against anyone to whom he may have disposed of the same, for the conversion thelieof. (Syua:6;,), by the Oourt.}

PuBLIC

L.um8-RIGHT

OJ' SETTLER TO CUT TIMBER.

LeuYiB L. McArthur,

Action to Recover Damages for the Conversion of Timber. for the United States. H. Hurley and Arthur b. Frazer, for defendants.

DEAl>Y, J. This action is brought by the United States to recover {}amages for the conversion of timber alleged to have been cut from the public lands in Yamhill county. It is alleged in the complaint that on January 1,'1881, and on .divers days thereafter I and prior to February 1,1884, JohnW. Green unlawfully cut from the public lands designated in the surveys thereof as the N. E. t of the N. E. t, and the S. E. t of theN.E. t,ofsection 30, township 2 S. of range 5 W. of the Wallamet meridian, 840,000 feet of growing timber, and made the same into sawlogs,which,he removed to the defendants' saw-mill in Yamhill county;